The Power of Nine: Federalists, Antifederalists, and Natural Law Synthesis in the Ninth Amendment, Part Two
Part Two in a Four-Part Series
One of Bernard Bailyn’s most prominent students was Gordon S. Wood. His works include The Creation of the American Republic: 1776 – 1787 (1969), The Radicalism of the American Revolution (1991), and Empire of Liberty: A History of the Early Republic, 1789 – 1815 (2009). In addition to promoting the ideological thesis in his work, Wood criticized Beard’s characterization of the economic circumstances of the 1783 – 1787 era. He charges that Beard downplayed the economic realities of the 1780s, implying treachery on the part of the Federalists which Wood utterly rejects. “Historians [such as Beard] who have minimized the criticalness of conditions in the 1780s have naturally tended to see the movement for the Constitution as something in the nature of a conspiracy by a few without widespread justification in the social and economic realities of the period.” Thus, Wood is among historians who do not reject the economic thesis entirely, but have found Beard’s analysis to be too deterministic.
Herbert J. Storing added to the criticism of Beard in the 1970s, although he too agreed economics played a role in the motivations of the Federalists and Antifederalists. Storing nevertheless found Beard’s thesis ultimately too simplistic. Echoing Cecelia Kenyon’s critiques, Storing noted that Beard’s thesis “tends to see simple democratic agrarians among the Antifederalists as it tends to see self-seeking commercial oligarchs among Federalists. There is some basis for this view, but the picture is thin and distorted.”
Primary source evidence supports the point that economics certainly were a concern across many of the colonies. This can be seen, for example, in an engraving by Amos Doolittle in 1787 during the ratification debate era. Doolittle lived in Connecticut and recognized the importance of strengthening the economy by means championed by the Federalists, including the implementation of uniform currency and the elimination of paper money. In Doolittle’s piece of political folk art, Connecticut is symbolized as a wagon loaded with debts and paper money. The weight of the debt has caused the wagon to sink into mud. The driver of the wagon warns, "Gentlemen this Machine is deep in the mire and you are divided as to its releaf."
It should be noted that just as supporters of Beard have sought to clarify or add to his initial thesis—or point to elements of its limitations—some scholars who have been largely supportive of Bailyn’s ideological thesis have similarly highlighted certain weaknesses. This includes anarcho-capitalist economist, Murray Rothbard. In his article, “Modern Historians Confront the American Constitution,” Rothbard argues, “One problem with the generally correct Bailyn thesis is its exclusive emphasis on ideology, as it affected the minds and hearts of the Americans.” Just as Beard could have benefited from giving some attention to ideology, Bailyn could have given at least a modicum of consideration to economic motivators.
The twenty-first century has seen more supporters of Bailyn’s ideological thesis, including academics outside of the field of history. Randy Barnett, Professor of Law and Legal Theory at Georgetown University Law Center, in Restoring the Lost Constitution (2004), contends unwaveringly that the Natural Law principles of the framers were at the forefront of their motivations. Barnett maintains that the Constitution must be viewed in its proper ideological context, and that the Supreme Court has, throughout the nation’s history, made a series of mistakes for not abiding by a “presumption of liberty” precept. Barnett also examines the role of the Ninth Amendment in understanding the philosophy and motivations of the framers, which will be explored further in a later section of this work.
The dispute between the economic school and the ideological school has raged for the better part of a century, and there is no reason to believe it won’t persist. This can be seen even in the reaction to an absence of debate. Pauline Maier, a student of Bernard Bailyn and author of Ratification: The People Debate the Constitution, 1787 – 1788 (2010), gave no reference to Charles Beard in her index. As Tom Cutterham, postdoctoral researcher at University of Oxford, stated, this could have been taken that scholars no longer need to address Beard’s enormous legacy. However, author Seth Cotlar of Tom Paine's America: The Rise and Fall of Transatlantic Radicalism in the Early Republic and Professor of History at Willamette University, called out Maier in a William and Mary Quarterly forum in 2013, and criticized her for the “absence of any direct engagement” with Beard’s economic thesis. Thus, the debate rages on.
The scope of this work will focus on aspects of constitutional history which neither Beard nor Bailyn reckoned with: the ratification debates and the Ninth Amendment. The aim is to explore the Natural Law tendencies of both Federalists and Antifederalists. Because of this, Bailyn, Wood, Maier, Barnett, and other views from an intellectual history perspective will be most represented. Nevertheless, while this writer sees problems with Beard’s economic thesis, it is not to be construed as an avowal that it is wholly without merit. Indeed, an economic analysis of any historical era brings with it great value. However, as the scope of this work is to focus quite closely as to how Natural Law philosophy informed the creation of the Constitution and the Bill of Rights—and the Ninth Amendment most of all—it is understandable that any economic perspective, in and of itself, will be lacking. Though this is due to practical constraints, it is also due to a very real deficit the economic thesis carries, which is perhaps the largest criticism this writer can apply to Beard: the economic thesis of the Constitution separates economic motivation from Natural Law ideology. Simply put, economic motivators such as the protection of private property and the freedom to profit in an open marketplace are so intrinsically tied to Natural Law—just as individual rights of free speech, freedom of conscience, etc.—one cannot be so easily detached from the other. This is one of the dilemmas with the interpretation of economic determinism. It is inclined to cast economic interests in a vacuum; separate from political or philosophical beliefs. Human beings simply do not behave in such a way.
Economic motivators are very real, and should not be discounted or dismissed out of hand. However, proceeding as though economic impetus is not connected to broader beliefs in personal liberty, livelihood, individual happiness, and other elements of Natural Law philosophy is to ignore how deeply Natural Law theory influenced the lives of the framers. This work intends to show how that ideology informed the role of the Federalists in the making of the U.S. Constitution, the establishment of a Bill of Rights by Antifederalists, and the ratification of the Ninth Amendment which was designed to appease both factions.
Defining terms is crucial when discussing intellectual history, and the history of American political thought is no exception. Thus, an exploration and explanation of Natural Law, as the framers understood it, is of utmost importance. To do so is, fortunately, somewhat simple. It can be seen clearly and powerfully in the words of the founding document of the United States: the Declaration of Independence. Thomas Jefferson stated emphatically the principles of Natural Law when he argued that “We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness.” Thus, rights precede government. The words of Jefferson in the Declaration, modified slightly by others—including Benjamin Franklin and John Adams—asserts the essence of Natural Law. Rather than the legal positivist view that rights are established by statute, and therefore by government, Natural Law maintains that legitimate government neither creates, nor takes away, certain inherent rights.
The Second Treatise on Government by John Locke predates the Declaration of Independence by almost a century. The level of Locke’s influence upon the American founding has been debated by historians for decades, but his Second Treatise nonetheless states that all men are naturally in “a state of perfect freedom to order their actions, and to dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.” However some may want to argue that Jefferson and others were not as influenced by Locke, as has been claimed, similar arguments for Natural Law can nevertheless be found in the writings of both men.
The reason why it is important to note the Natural Law influence upon the framers is precisely because the protection of individual rights can be put at risk through democratic means. Randy Barnett argues that “The Declaration stipulates that those who govern the people are supposed ‘to secure’ their preexisting rights, not impose the will of a majority of the people upon the minority…” This stance was not unique to Jefferson. Quite the contrary. Only two months prior to the Declaration of Independence, George Mason wrote the Virginia Declaration of Rights in May of 1776. In it, Mason asserts that “all men are by nature equally free and independent, and have certain inherent rights.” Thus, Jefferson was not inventing a concept out of whole cloth. He was instead calling back to the principles of the Enlightenment, forwarded by Europeans like John Locke, and avowing the political zeitgeist of late eighteenth century North America by borrowing the language of contemporaries like George Mason. Alexander Hamilton asserted Natural Law in 1775, when he argued that the “Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be erased or obscured by mortal power.” Jefferson, Mason, and Hamilton were recognizing rights not as the acquiescence of monarchy or even representative parliament, but as a product of nature. Rights are preexisting as they are innumerable and they cannot be justifiably surrendered. Just as the Virginia Declaration of Rights made explicit, “inalienable rights cannot be surrendered by compact.” This worldview is essential to understanding the philosophical bedrock of the American founding.
It might be assumed then that the push for a new Constitution, to replace the Articles of Confederation, was perhaps a means of further democratizing the nation; distancing the proposed government from the country’s Natural Law tendencies at the time of the Revolution. Such an assumption would be a mistake. It was, after all, James Madison, the chief promoter of ratification—often referred to as the father of the Constitution—who wrote in 1787 that the nation may be growing too democratic. He put his concern about the ill impacts of too much democracy into an easy to understand analogy:
“Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third. Will the latter be secure? The prudence of every man would shun the danger. The rules and forms of justice suppose and guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand?”
Just as Natural Law continued to be championed by Federalists like Madison in 1787, Antifederalists similarly emphasized undemocratic principles in their own arguments against ratification. Mercy Otis Warren argued in 1788 that “All writers on government agree… that man is born free and possessed of certain unalienable rights.” She also noted that the new Constitution provided no protections for persons regarding “rights of conscience or the liberty of the press.” Thus, her arguments were not merely for the rights of a vocal majority, but the protection of natural rights of individuals.
This was not unique among Mercy Otis Warren’s arguments. For example, she also argued for a decidedly undemocratic policy: term limits. Term limits permeate political debate in the United States to the present day. Modern arguments against term limits have included their inherently undemocratic nature. It is precisely the stop me before I vote again nature of term limits that is often denounced by supporters of democratic processes. Mercy Otis Warren, on the other hand, supported term limits and criticized the new Constitution for not including them:
“There is no provision for a rotation, nor anything to prevent the perpetuity of office in the same hands for life; which by a little well timed bribery, will probably be done, to the exclusion of men of the best abilities from their share in the offices of government. By this neglect we lose the advantages of that check to the overbearing insolence of office, which by rendering him ineligible at certain periods, keeps the mind of man in equilibrio [equilibrium], and teaches him the feelings of the governed, and better qualifies him to govern in his turn.”
Warren underscores the position that democratic limitations can, in fact, bolster and strengthen democracy. This paradoxical, yet functional assertion resides at the heart of Natural Law.
John Adams, as early as 1765, emphasized Natural Law when he maintained that rights are “antecedent to all earthly governments: rights cannot be repealed or restrained by human laws; rights [are] derived from the great legislator of the universe.” This demonstrates that Adams, himself an advocate for a new Constitution in the 1780s, subscribed to Natural Law ideology. Thus, both pro-ratification and anti-ratification factions expressed their arguments through a shared Natural Law worldview.
The Ratification Debates and Rational Fear of Democracy
The ratification of the U.S. Constitution was a second American revolution. Its existence is today taken for granted as though its success was inevitable, even though it endured serious and crucial challenges during the Civil War in the 1860s. Because of this common oversight, the bitter debates over the Constitution’s ratification have been largely forgotten. The ratification debates are seldom discussed in public high school history courses, or college courses for that matter, and the Constitutional Convention is itself given short shrift much of the time. This is unfortunate, because this second American revolution—the ratification of the Constitution—was, as much if not more so than the first, a revolution of political philosophy. It was a conversation over local control versus national control, liberty versus security, and parity versus individualism. It was also, in a number of ways, the realization of the Natural Law tenets declared by Mason and Jefferson in 1776. In this regard, it was a revolution which, somewhat ironically, simply emphasized the Natural Law arguments already asserted in the Declaration of Independence, even as it sought to create a stronger national government.
[End of Part Two]
 Gordon S. Wood, The Creation of the American Republic, 1776 – 1787 (Chapel Hill: University of North Carolina Press, 1969), 394.  Herbert J. Storing, What the Anti-Federalists Were FOR: The Political Thought of the Opponents of the Constitution (Chicago: University of Chicago Press, 1981), 4.  Amos Doolittle. “The looking glass for 1787. A house divided against itself cannot stand. Mat. chap. 13th verse 26.” 1 print : engraving and rocker work, with watercolor on laid paper ; 28.7 x 36.7 cm. (image). New Haven, 1787. Library of Congress. https://www.loc.gov/pictures/item/2008661778/.  Murray Rothbard, “Modern Historians Confront the American Revolution,” Literature of Liberty: A Review of Liberal Thought 1, no. 1 (January/March, 1978): mises.org/library/modern-historians-confront-american-revolution  Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), 5.  Tom Cutterham, “Charles Beard, Economic Interpretation, and History,” The Junto, earlyamericanist.com/2013/02/12/Charles-beard-economic-interpretation-and-history.  Thomas Jefferson, Declaration of Independence. For the Record: A Documentary History of America, David E. Shi and Holly A Mayer, ed. (New York: Norton, 2013), 119.  John Locke. The Second Treatise on Civil Government. For the Record: A Documentary History of America. David E. Shi and Holly A Mayer, ed. (New York: Norton, 2013), 84.  Randy Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We The People, (New York: Broadside Books/Harper Collins, 2016), 42.  George Mason, Virginia Declaration of Rights. May, 1776. Library of Congress. loc.gov/rr/program/bib/ourdocs/mason.html.  Alexander Hamilton, The Papers of Alexander Hamilton, Edited by Harold C. Syrett (New York and London: Columbia University Press, 1961—79), http://press-pubs.uchicago.edu/founders/documents/v1ch3s5.html.  George Mason, Virginia Declaration of Rights. May, 1776. Library of Congress. loc.gov/rr/program/bib/ourdocs/mason.html.  James Madison, Vices of the Political System of the United States, April, 1787. National Archives. Founders Online. founders.archives.gov/documents/Madison/01-09-02-0187.  Mercy Otis Warren, “Observations on the New Constitution, and on the Federal and State Conventions by a Columbian Patriot” (Pamphlet, 1788), Pamphlets on the Constitution of the United States, Published during Its Discussion by the People 1787–1788. ed. Paul Leicester Ford. Brooklyn: Paul Leicester Ford, 1888. http://oll.libertyfund.org/titles/ford-pamphlets-on-the-constitution-of-the-united-states-1787-1788.  Warren, “Observations on the New Constitution, and on the Federal and State Conventions by a Columbian Patriot” (Pamphlet, 1788).  This is precisely the argument made by Victor Kamber in his book, Giving Up on Democracy: Why Term Limits are Bad for America (Washington, D.C.: Regenery Publishing, 1995).  Warren, “Observations on the New Constitution,” (Pamphlet, 1788).  John Adams, “A Dissertation on the Canon and Feudal Law,” August 12, 1775, Founders Online, National Archives, http://founders.archives.gov/documents/Adams/06-01-02-0052-0004.  The ratification process of the proposed Constitution required state conventions to assemble, deliberate, and vote on the Constitution as is. Any alterations promised by Federalists had to be trusted in good faith that amendments would be added later. This included concerns over a lack of a Bill of Rights. Nine state conventions had to approve ratification of the Constitution for the creation of the new Federal Government to become legally legitimate. Any state which voted against ratification would not be a member state of the new Constitutional government. Eventually, all thirteen states voted in favor of ratification.